Pre-contractual and contractual referee: the ousted candidate has every interest in notifying his / her summary to the contracting authority
Rule n ° 1:
The Code of Administrative Justice organizes a special procedure for referral to the pre-contractual summary judge. Indeed, under the terms of article R 551-1 of the CJA, the author of a pre-contractual injunction is in principle obliged to notify his recourse to the contracting authority at the same time as the lodging of his appeal with the court. This is not a precondition for the inadmissibility of the pre-contractual injunction, but a precaution to prevent the contracting authority from entering the market in the absence of knowledge of the action.
Rule n ° 2:
If the applicant does not notify the contracting authority of its pre-contractual injunction as provided for in Article R. 551-1 of the CJA and the CJA signs the contract before he is informed of the referral to the judge, then not only does the pre-contractual intermediary lose object but the applicant can no longer introduce a contractual referral.
Example: In this case, the ousted candidate filed a pre-contractual injunction on 6 May 2011. He did not, however, notify the use of the contracting authority as provided for in Article R. 551-1 of the CJA. On 10 May 2011, the administrative court informs the contracting authority of the interim order, but the latter indicates that the contract has already been signed and that it has never been notified of the introduction of a pre-contractual summary. The ousted candidate then makes a contractual referral against the signed contract. The Conseil d'État considers that this appeal is inadmissible since the contracting authority did not violate the provisions of Article L. 551-14 of the Code of Administrative Justice which provide that the contractual recourse is open to the plaintiff who has introduced a pre-contractual referral if the contracting authority did not respect the suspension triggered by the referral to the judge hearing the application for interim measures or failed to comply with the judge's decision.